August 2, 2022 – Regardless of communication barriers that various client circumstances may present, lawyers owe their clients the duties of competent representation and effective communication.[i] These duties are not diminished even when the client and the lawyer speak different languages, or when the client possesses a hearing, speech, or vision disability. In such situations, lawyers are responsible for arranging the appropriate accommodations, such as impartial interpreters, translators, or even language-translation technologies.[ii] Moreover, “a lawyer must ensure that the client understands the legal significance of translated or interpreted communications and that the lawyer understands the client’s communications, bearing in mind the potential differences in cultural and social assumptions that might impact meaning.”[iii]
Lawyers must take steps to help secure interpreters or translators when there cannot be a reliably understandable reciprocal exchange of information with their clients.
The method of communication used between a lawyer and a client is ordinarily decided by the lawyer and the client jointly. “A lawyer may not, however, passively leave the decision to the client or thrust the responsibility to make arrangements for interpretation or translation entirely upon the client.”[iv] Indeed, “it is the lawyer’s affirmative responsibility to ensure the client understands the lawyer’s communications and that the lawyer understands the client’s communications.”[v] If the lawyer has any doubt about the effectiveness of client-lawyer communications, the lawyer should engage an interpreter or translator or use a suitable assistive device.
An individual hired to facilitate communication between a lawyer and a client must be qualified to provide interpretations or translations of relevant legal concepts to the client in his or her language or mode of communicating.
Any non-lawyer engaged to provide interpretation or translation services between a lawyer and a client “must be qualified to serve as an interpreter or translator in the language or mode required, familiar with and able to explain the law and legal concepts in that language or mode, and free of any personal or other potentially conflicting interest that would create a risk of bias or prevent the individual from providing detached and impartial interpretive or translation services.”[vi] Usually, this is best achieved by engaging outside professionals. Nonprofessional interpreters and translators may be used, including multilingual lawyers and non-lawyer staff members of a firm, but “the lawyer should proceed cautiously in light of the reduced ability to assess the nonprofessional’s level of proficiency and the concomitant increased risk of inaccuracies in interpretation or translation.”[vii]
Sometimes, the client’s family member or friend may serve as an interpreter or translator. This arrangement, however, substantially increases the risk that the individual serving as the interpreter or translator will be affected by a personal interest in the outcome of the representation. “Lacking accountability to the lawyer or firm derived from an employment or other contractual relationship, relatives and friends of the client may also be less reliable in providing interpretation or translation services when needed.”[viii]
If an emergency arises, and the lawyer reasonably believes that interpretation or translation services cannot be obtained quickly, the lawyer should nevertheless try to prevent irreparable, immediate harm to the client to the extent possible.[ix]
Lawyers are responsible for supervising the work of non-lawyer interpreters and translators.
Lawyers are responsible for ensuring that the conduct of any associated non-lawyer providing a service “is compatible with the professional obligations of the lawyer.”[x] Therefore, lawyers are responsible for any non-lawyer hired to provide interpretation or translation services, including ensuring that the non-lawyers comply with Model Rule 1.6’s duty of confidentiality.
A lawyer’s duty of competence requires him or her to consider cultural and social differences that may affect a client’s understanding of legal advice and legal concepts.
A lawyer’s duty of competence requires him or her to pay attention to social and cultural differences that may affect a client’s understanding of the legal advice and concepts being communicated to them during the course of the representation. Any number of factors may affect communications between the lawyer and the client apart from language differences, such as ethnicity, religion, and national origin. “The client may view the representation and choices it entails through the lens of cultural and social perspectives that are not shared by or familiar to the lawyer.”[xi] Successfully navigating cultural and social differences requires:
(i) identifying these differences; (ii) seeking to understand them and how they bear upon the representation; (iii) paying attention to implicit bias and other cognitive biases that can distort understanding; (iv) adapting the framing of questions to help elicit information relating to the representation in context-sensitive ways; (v) explaining the matter in multiple ways to promote better client insight and comprehension; (vi) ‘allow[ing] for additional time for client meetings and ask[ing] confirming questions to assure that information is being exchanged accurately and completely’” and (vii) conducting additional research or drawing upon the expertise of others when that is necessary to ensure effective communication and mutual understanding.[xii]
“Awareness of, and ability to understand, issues of culture and disability that might affect communication techniques and influence client objectives is inextricably intertwined with providing effective legal advice to a client.”[xiii]
Conclusion and Practical Takeaway.
Lawyers must ensure that their clients understand the legal significance of translated or interpreted communications and that the lawyer understands the client’s communications, all the while keeping in mind differences in culture and social expectations that may impact the clients’ understanding. It is up to lawyers to take the appropriate measures, depending on each client’s situation, to ensure that they properly discharge their duties when faced with a communication barrier.
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The information provided in this bulletin speaks only to the information and guidance we have available as of the date of publication and is subject to change. We will continue to follow further issued guidance and regulations and endeavor to post those updates via our website. This legal update was created by Ulmer & Berne LLP, and is not intended as a substitute for professional legal advice. Receipt of this bulletin, by itself, does not create an attorney client relationship. For any questions, or for further information, please contact Alvin E. Mathews, Jr. at email@example.com.
[i] ABA Model Rules of Prof’l Conduct R 1.1 and 1.5.
[ii] ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 22-500 (2022).
[iii] ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 22-500 (2022).
[iv] ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 22-500 (2022) (citing Attorney Grievance Comm’n v. Aita, 181 A. 3d 774 (Md. 2016); N.Y. City Bar Formal Op. 1995-12 (1996)).
[v] ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 22-500 (2022) (citing State Bar of Cal., Formal Op. 1984-77 (1984)).
[vi] ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 22-500 (2022).
[vii] ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 22-500 (2022) (citing N.Y. City Bar Formal Op. 1995-12 (1996)).
[viii] ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 22-500 (2022).
[ix] ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 22-500 (2022) (citing ABA Model Rules of Prof’l Conduct R. 1.14 cmt. , which states in relevant part: “In an emergency where the health, safety or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person’s behalf has consulted with the lawyer.”). The ABA uses the example of a client, or potential client, facing a communication barrier who is subject to expedited removal from the country in an immigration proceeding.
[x] ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 22-500 (2022) (citing N.H. Bar Ass’n Ethics Comm., Advisory Op. 2009-10/02 (2010)).
[xi] ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 22-500 (2022).
[xii] ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 22-500 (2022) (quoting N.H. Bar Ass’n Ethics Comm., Advisory Op. 2009-10/02 (2010) and Susan Bryant, The Five Habits: Building Cross-Cultural Competence in Lawyers, CUNY School of Law (2001), available at https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1257&context=cl_pubs).
[xiii] ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 22-500 (2022).